Application for Stay.
ORDER.
The motion for a stay of the temporary injunction issued by the United States District Court for the District of Massachusetts presented to Mr. Justice Brennan, and by him referred to the Court, is granted pending the timely filing and disposition of an appeal.
Should such an appeal not be filed, this stay is to expire automatically. Should such an appeal be timely docketed, this stay is to continue pending the Court's action on the jurisdictional aspect of the case. In the event the appeal is dismissed or the judgment below is summarily affirmed, this stay is to expire automatically. Should the Court note probable jurisdiction of the appeal or postpone further consideration of the question of jurisdiction to the hearing on the merits, this stay is to remain in effect pending the issuance of the judgment of this Court.
Mr. Justice DOUGLAS, dissenting.
Respondents are the owners and operators of a motion picture theatre which has been showing the film, 'I Am Curiour (Yellow).' On June 3, 1969, they were indicted by the Suffolk County Grand Jury for possessing with intent to exhibit an obscene film in violation of Mass.Gen.Laws, c. 272, § 28A. On June 17, 1969, respondents brought an action in the United States District Court for the District of Massachusetts to enjoin future prosecutions for the showing of 'I Am Curious (Yellow)' and to declare that prosecution and the Massachusetts statute unconstitutional. On June 24, 1969, the three-judge District Court enjoined the prosecution on the ground that the indictments did not allege scienter. The indictments were then dismissed, and new indictments were thereafter returned. Respondent's request for a temporary injunction barring the second prosecution was denied by the District Court on July 15, 1969. The court stated that it would not consider a claim that the film was not obscene as an evidentiary matter, but invited the parties to submit briefs on the question whether the Massachusetts statute was unconstitutional on its face.
Respondents were convicted of the state obscenity offense on November 12, 1969. The applicant in this proceeding, the District Attorney for Suffolk County, has not agreed that respondents may exhibit the film pending the appeal of their convictions. On November 19, 1969, applicant moved the District Court to abstain from deciding the constitutionality of the Massachusetts statute, pending the resolution of that issue in the state courts. On November 28, 1969, the District Court, by a 2-1 vote, denied the motion and authorized a temporary injunction enjoining applicant from interfering with respondents as respects future showings of the film, 'I Am Curious (Yellow),' pending a final disposition by the District Court on the merits.
Applicant now requests this Court to stay the temporary injunction which issued by the District Court.
The injunction issued by the District Court does not interfere in any way with the criminal conviction already obtained in the Massachusetts courts. That case will proceed unaffected by anything the federal court does, save for final execution of the state judgment. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, is different. There we did not force petitioners to risk vindication of their constitutional rights in a state prosecution under an 'overly broad' state statute. Id., at 486, 85 S.Ct. 1116. But in this case that risk was faced and resolution of the constitutional issues is being undertaken in the state courts. All that the federal court proposes is protection of respondents against repeated prosecutions, while both the state courts and the federal courts are resolving the constitutional issues. Enjoining one state prosecution, though perhaps permissible under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, would not be in keeping with more recent decisions. Douglas v. Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324. But I read the sparse record before us differently from Mr. Justice Stewart and believe that we deal here with threats of repeated prosecutions; and those threats seem to me to be no less ominous to the federal constitutional regime than the threatened harassment of union leaders in Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, who were asserting First Amendment rights in explaining the purposes of the new National Labor Relations Act. See the opinion of Mr. Justice Roberts and Mr. Justice Black, id., at 504-506, 59 S.Ct. 954.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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